SUPREME COURT OF ILLINOIS
522 N.E.2d 1233, 122 Ill. 2d 163, 119 Ill. Dec. 374 1988.IL.591
JUSTICE CUNNINGHAM delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM
The Administrator of the Attorney Registration and Disciplinary Commission (Commission) filed a two-count complaint against respondent, J. Anthony Mason. The principal conduct giving rise to the allegations of count I was respondent's failure to file a notice of claim pursuant to section 41 of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1983, ch. 111 2/3, par. 341) with the Chicago Transit Authority , against whom his client wished to initiate a personal injury action. In count I, the Administrator alleged that respondent neglected a legal matter entrusted to him in violation of Rule 6-101(a)(3) of the Code of Professional Responsibility (Code) (107 Ill. 2d R. 6-101(a)(3)); failed to seek the lawful objectives of his client through reasonably available means in violation of Rule 7-101(a)(1) of the Code (107 Ill. 2d R. 7-101(a)(1)); failed to carry out a contract of employment entered into with a client for professional services in violation of Rule 7-101(a)(2) of the Code (107 Ill. 2d R. 7-101(a)(2)); and engaged in conduct which prejudiced or damaged his client during the course of the professional relationship in violation of Rule 7-101(a)(3) of the Code (107 Ill. 2d R. 7-101(a)(3)).
In count II, which was based upon respondent's alleged attempt to conceal the error alleged in count I, the Administrator asserted that respondent attempted to limit liability to a client for personal malpractice in violation of Rule 6 -- 102(a) of the Code (107 Ill. 2d R. 6 -- 102(a)). In both counts the Administrator alleged that respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 1 -- 102(a)(4) of the Code (107 Ill. 2d R. 1 -- 102(a)(4)); engaged in conduct that was prejudicial to the administration of Justice in violation of Rule 1 -- 102(a)(5) of the Code (107 Ill. 2d R. 1 -- 102(a)(5)); engaged in conduct which had the appearance of professional impropriety in violation of canon 9 of the Code (107 Ill. 2d Canon 9); and engaged in conduct which tended to defeat the administration of Justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 771 (107 Ill. 2d R. 771).
After hearing evidence on the complaint, the hearing panel recommended that this court censure but not suspend respondent. Both respondent and the Administrator filed exceptions to the hearing panel's findings and recommendation, but the Review Board (over the Dissent of two members) concurred in the findings, Conclusions and recommendations of the hearing panel.
Respondent testified before the hearing panel regarding his personal and professional background and regarding the facts pertinent to this case. With regard to his own background, he testified that he obtained his Illinois license to practice law in November 1978, after which he worked as an attorney for a pharmaceutical company for whom he had worked for many years in other capacities. In 1983, approximately one year prior to the misconduct alleged herein, respondent began to work as a sole practitioner. He is presently married and the father of two children. No other disciplinary complaints have been filed against him.
With respect to count I, respondent's testimony, in conjunction with certain evidentiary exhibits, indicated that on April 26, 1984, John Battle requested that respondent assert on his behalf a personal injury claim against the CTA and a CTA bus driver. Battle informed respondent that his foot had been injured and that his arm and neck had been severely bruised in a CTA bus accident on March 2, 1984. Battle further claimed that the driver closed the door on his arm and leg and pulled off from the curb, dragging Battle along a city street. Battle told respondent that he had gone to the emergency room twice and had been hospitalized for many days at Cook County and Loretta Hospitals, that he had medical bills exceeding $9,000, and that both a police report and an emergency-room report had been prepared at the time of the accident.
Respondent further testified that on the same day that he interviewed Battle he also filled out and personally delivered to the Chicago police department an accident request form. The following day he sent Battle a post-interview "follow-up" letter. Shortly thereafter, respondent mailed a notice of attorney's lien to the CTA. He believes that he included with the lien notice a copy of the police report, which stated that Battle was treated at Cook County Hospital. Respondent also mailed out requests for emergency-room reports, medical reports and itemized statements of medical costs. Respondent received responses to these requests.
Respondent testified that he reviewed the reports and documents and found that none of the reports from Cook County Hospital related to a bus accident, and respondent also found nothing relating to an emergency-room visit. Rather, the medical reports related to treatments for diabetes and acute alcoholism. Respondent's inspection of the police report revealed that it was filed four days after the alleged accident and was based solely upon what Battle had verbally informed the police. Respondent testified that at that point he began to suspect that his client was being less than candid with him, but that despite these doubts respondent again attempted to obtain records of the supposed accident-related emergency-room visits, through written and telephone requests. Respondent stated that eventually the hospital confirmed orally and in writing that no such emergency-room report existed.
According to respondent, he had several written and oral communications with a CTA claims representative within six months of the alleged accident. The claims representative did not mention that the CTA required an official notice of claim within six months of the accident date. Rather, the CTA representative wrote to respondent advising him that the CTA's file was "incomplete as to a medical release form, certain medical reports and certain bills."
Respondent testified that in early 1985 another attorney advised him of the six-month notice requirement. Respondent did not previously know of this requirement, though he had been familiar with the ...